Texas and Regulation 9-17-2016

09/20/16 • 95 min

The tension between economic liberty and the state’s power to regulate economic activity has long served as a source for landmark cases and controversies. Post-New Deal jurisprudence opened the floodgates to economic regulation. In Texas, entrepreneurs who have developed cutting-edge innovations have found themselves tangled in regulatory red tape. But one’s right to engage in economic activity free from unreasonable government interference has always been understood as being in lockstep with Texas’s independent spirit. However, critics maintain that consumer protection and maintaining a level playing field are also important goals in crafting their regulatory policies. This tension has given rise to cases and legislative battles in the Lone Star State that have garnered national attention. Will Texas continue to lead the way for entrepreneurs and innovators, and how will the regulatory state affect this trajectory? What is the proper balance between innovation and regulation? -- This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Featuring: Mr. Arif Panju, Institute for Justice; Mr. Tim Sandefur, Goldwater Institute and author, The Right to Earn a Living; Mr. Prerak Shah, Office of Texas Attorney General; and Mr. Russell Withers, General Counsel, Texas Conservative Coalition Research Institute. Moderator: Hon. Don Willett, Texas Supreme Court. Introduction: Ms. Diane Kozub, Former Assistant United States Attorney at United States Attorney's Office.

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Local Control or Abdication of Individual Rights? 9-17-2016

A growing number of Texas municipalities are passing so-called "nanny state" restrictions and regulations that may interfere with Texans’ personal liberties, property rights, and livelihood. Advocates of these types of regulations defend them by citing a theory of “local control,” which posits that government works best when it is closest to the people. Our republic is founded upon the notion that all powers not granted to the federal government are reserved to the states or to the people. Some say the notion of local control being anything other than a specific grant of authority from the state government is a misunderstanding of federalism. This could lead to "grassroots tyranny" in which individual liberties of Texans are encroached by local government. Should the Legislature enforce strict limits on municipalities or should it defer to the will of a geographical majority? How can the Legislature reassert its primacy as the state’s lawgiver and defender of individual liberty if existing statutes are overlooked by the courts? In short, this panel will discuss a theory of local control and determine whether the Texas Legislature has abdicated too much lawmaking authority to political subdivisions throughout the state. -- This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Featuring: Hon. Phil King, Texas House of Representatives, District 61; Dean Andrew P. Morriss, Dean and Anthony G. Buzbee Dean’s Endowed Chair, Texas A&M University School of Law; and Hon. Don Zimmerman, Council Member, District 6, Austin. Moderator: Hon. Michael Massengale, First Court of Appeals, Texas. Introduction: Mr. Roger Borgelt, Principal and CEO, Borgelt Law. Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society.

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Justice Scalia and the Evolution of Chevron Deference 9-17-2016

For over thirty years, the seminal Supreme Court decision in Chevron v. NRDC has provided the principles used to determine the extent to which a court reviewing agency action should defer to the agency’s interpretation of its own rules as well as fill in “blanks” in the text. For much of his career on the Supreme Court, Justice Scalia (and the Court) deferred to this decision. However, late in his tenure, Justice Scalia had begun to reconsider Chevron deference. For the Chevron example, in his opinions in King v. Burwell andUtility Air Regulatory Group v. EPA, Justice Scalia criticized agencies’ assertions of unprecedented power. This panel will explore how judicial deference to agency decision-making has evolved since and whether it is time to revisit the doctrine of “Chevron deference.” How might Justice Scalia have come down on US v. Texas, net neutrality, or the EPA’s “Clean Power Plan”? Might his views have continued to evolve if he had remained on the Court? And what is the future of Chevron deference with the Roberts Court? Is a new balance between courts and agencies needed? -- This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Welcome by Hon. Ken Paxton, Texas Attorney General. Introduction by Mr. Prerak Shah, Senior Counsel to the Attorney General. Panel One: Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law; Prof. Ron Beal, Baylor University Law School; Hon. Charles J. Cooper, Partner, Cooper & Kirk, PLLC and former Assistant U.S. Attorney General for the Office of Legal Counsel; and Prof. Aaron Nielson, Brigham Young University Law School. Moderator: Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit. Introduction: Ms. Karen Lugo, Director, Center for Tenth Amendment Action, Texas Public Policy Foundation.